Arizona Divorce & Family Law

This blog is created by Carrie Wilcox* of Wilcox Legal Group, P.C. to provide general information that may be helpful to those interested in divorce and family law issues. If you need specific information related to your situation, I strongly advise you to contact a lawyer in person.
Please feel free to notify me of topics that may be of interest so that I can address them.
* Ms. Wilcox is licensed to practice in the state and federal courts of Arizona.

Monday, February 28, 2005

How Do Social Security Benefits Affect Child Support?

Answer: Social Security benefits can affect child support in two ways. First, if a either the parent paying child support (the "obligor") or the parent receiving child support (the "obligee") receives Social Security benefits, the Arizona Child Support Guidelines require that the Social Security benefits be included in determining either parents income. Thus, the Social Security benefits help to determine the initial child support obligation.Second, the Social Security benefits can affect the amount of child support that must be paid out of pocket by the parent paying child support. Section 26 of the Arizona Child Support Guidelines addresses this issue and states verbatim as follows:A. Income earned or money received by a child from any source other than court-ordered child support shall not be counted toward either parent’s child support obligation except as stated herein. However, income earned or money received by or on behalf of a person for whom child support is ordered to continue past the age of majority pursuant to Arizona Revised Statute Sections 25-320.B and 25-809.F may be credited against any child support obligation.B. Benefits, such as Social Security Disability or Insurance, received by a custodial parent on behalf of a child, as a result of contributions made by the parent paying child support shall be credited as follows:1. If the amount of the child's benefit for a given month is equal to or greater than the paying parent's child support obligation, then that parent's obligation is satisfied.2. Any benefit received by the child for a given month in excess of the child support obligation shall not be treated as an arrearage payment nor as a credit toward future child support payments.3. If the amount of the child's benefit for a given month is less than the parent's child support obligation, the parent shall pay the difference unless the court, in its discretion, modifies the child support order to equal the benefits being received at that time.C. Except as otherwise provided in section 5.B, any benefits received directly, and not on behalf of a child, by either the custodial parent or the parent paying child support as a result of his or her own contributions, shall be included as part of that parent’s gross income.My interpretation of the above, minus some of the legalese, is really pretty simple:A. If a child receives benefits from a source outside of the parent paying child support, it will not normally diminish the paying parent's child support obligation unless the Arizona Child Support Guidelines provide a specific exception. However, if a mentally or physically disabled child receives child support past the age of majority, those amounts may be credited toward the paying parent's child support obligation. Notice this is a "may" and not a "shall," meaning that the court has discretion in this child support matter. B. If a child receives benefits, such as social security or insurance, because the paying parent made the child eligible to receive such benefits by paying into the system, those amounts shall be credited toward the paying parent's child support obligation in the manners described. Notice this is a "shall" and not a "may," meaning that the court has no discretion in this child support matter. C. As I mentioned above, a parent who receives payments directly on his or her behalf must include those amounts in income totals used to calculate child support. However, the exception to this provision is provided by the Child Support Guidelines Section 5(B) which states, "Gross income does not include sums received as child support or benefits received from means-tested public assistance programs including, but not limited to, Temporary Assistance to Needy Families (TANF), Supplemental Security Income (SSI), Food Stamps and General Assistance."Wilcox & Wilcox, P.C.Trent WilcoxFor the Firm

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. Theinformation contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Friday, February 04, 2005

Can a Married Couple Change the Nature of an Asset from Community Property to Sole and Separate, or Vice Versa?

Answer: Sure. Intentionally changing the nature of a marital asset is common. For example, one spouse may quit-claim a house to the other for some reason. This written agreement evidences the spouses' intent that the asset be sole and separate property from that point on. Likewise, one spouse could change a sole and separate house to community property by an opposite change in title, to community property. The family court would see that as a “gift” to the community. Many parties also use antenuptial (prenuptial) and postnuptial agreements to alter community property principles. On a different note, it is also possible to make the marital property change unintentionally. This occurs in the case of commingling. Commingling occurs during a marriage when separate assets and community assets become hopelessly mixed such that the family court, during divorce proceedings, cannot tell the difference. This frequently occurs with bank accounts. The burden of tracing the separate asset during a divorce falls on the spouse claiming a sole and separate interest. When an asset changes its nature, the process is called “transmutation.”Wilcox & Wilcox, P.C.Trent WilcoxFor the Firm

Disclaimer: Providing the above information does not establish anattorney-client relationship. To create such a relationship, both theattorney and potential client must sign a written fee agreement. Theinformation contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Wednesday, February 02, 2005

I’ve Learned that My Spouse Spent $200,000 of Our Community Funds Gambling Over the Years. Can I Make a Claim for that Amount During the Divorce?

Answer: Depends on your particular situation. The concept of “waste” could apply in this divorce case, making your spouse liable to you for your portion of the wasted asset, i.e., half during a divorce case. However, waste is not always an easy thing to prove and varies from divorce case to divorce case. For example, if Bill Gates spends $200,000, it might not be considered community waste because it’s such a minor amount for him and his wife. For most people, throwing away that much cash is a serious matter and so a divorce court might be expected to address the $200,000 in the divorce by either offsetting other assets and debts to make up for it or ordering the wasting spouse to pay the other. Wilcox & Wilcox, P.C.Trent WilcoxFor the Firm

Disclaimer: Providing the above information does not establish anattorney-client relationship. To create such a relationship, both theattorney and potential client must sign a written fee agreement. Theinformation contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What is the Effect of My Divorce Decree on My Creditors?

Answer: Not that much. Debts the community incurs remain community debts in the eyes of creditors. Although it seems harsh many times, both spouses will remain liable for a community debt even though the family court awards responsibility for that debt to one spouse or the other pursuant to a Decree of Dissolution of Marriage (divorce decree). Therefore, if the spouse ordered to pay in the divorce decree does not do so, creditors have recourse against the other spouse. On occasion (not frequently), a creditor will agree to not pursue a spouse based on the divorce decree; however, they have no legal obligation to do so. The law takes the stance that third party creditors should not suffer as a result of a couple’s bad relationship leading to a divorce.Wilcox & Wilcox, P.C.Trent WilcoxFor the Firm

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. Theinformation contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.